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HomeMy WebLinkAbout98-003-R HesslerJohn T. Hofrichter, Esquire William A. Mitchell & Associates 70 E. Wheeling St. Washington, PA 15301 Dear Mr. Hofrichter: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Monsignor Joseph G. Quinn Boyd E. Wolff Julius Uehlein Louis W. Fryman DATE DECIDED: 7/24/98 DATE MAILED: 8/7/98 98 -003 -R Re: Conflict; Public Official /Employee; School District; Director; Township; Employer; Planning Commission; Member; Police Department; Lieutenant; Employee; College Instructor; LERTA ZONE; Revenue Allocation Program; Revitalization; Mall Expansion; Vote; Appeal of Advice; Intervention; Past Action; Reconsideration. This Opinion is issued in response to your request for reconsideration of Hofrichter, Opinion No. 98 -003. I. ISSUE: Whether this Commission should grant reconsideration of Hofrichter, Opinion No. 98 -003. II. FACTUAL BASIS FOR DETERMINATION: This matter initially arose from an advisory request letter of Kirk J. Hessler (Hessler) dated January 22, 1998 which resulted in the issuance of Hessler Advice of Counsel No. 98 -515 issued February 19, 1998. Hessler timely appealed that Advice of Counsel, and after his appeal was considered in a public meeting at which he appeared and offered commentary, Hofrichter, Opinion No. 98 -003, was issued. The appeal of Advice of Counsel 98 -515 was dismissed on the basis that the case involved past conduct. As to the Petition to Intervene filed by North Franklin Township, it was denied since there was no case in which to intervene. Hofrichter 98 -003 -R August 7, 1998 Page 2 You have timely submitted a request for reconsideration of Hessler, Opinion No. 98 -003. In seeking reconsideration, you have reiterated arguments which were previously raised when we decided the base Opinion, and which may be fairly summarized as follows. It is argued — once again — that although Hessler cast a vote on the issue in question, a second vote was later taken on the issue, as to which Hessler abstained, and which nullified the first vote. You state that, pursuant to Advice of Counsel, No. 98 -515, Hessler continues to abstain from all votes concerning LERTA issues. Second, you reiterate the argument previously posed during our consideration of the base Opinion, that as a result of the continuing nature of the limitations on Hessler's ability to vote on LERTA issues, the advisory nature of the request continues to exist and that while the vote of February 19, 1998 was rescinded, future votes and considerations by Hessler will continue to exist without resolution. You argue that there is a material error of law and fact in Opinion No. 98 -003 due to the prospective nature of voting by Hessler as a School Director for Trinity School District as to LERTA Zone issues. In addition to reiterating the above arguments that were previously before this Commission, you have submitted a packet of materials which includes a so- called letter of "observations" of Hessler. The letter is undated and is addressed to you. It references the same two arguments above. It also includes numerous remarks which have already been addressed in Opinion No. 98 -003. Finally, it includes protestations by Hessler that he has been deprived of due process by this Commission's dismissal of his appeal. By letter dated July 7, 1998, you were notified of the date, time, and location of the public meeting at which your request for reconsideration would be considered. It is noted that neither you nor Hessler were present at that meeting. 111. DISCUSSION: We have been asked to reconsider Hofrichter, Opinion No. 98 -003. We would initially note that this Commission may exercise broad discretion in determining whether to grant or deny reconsideration, if such discretion is exercised in a sound manner. Krane, Opinion No. 84- 001 -R; PSATS v. State Ethics Commission, 499 A.2d 735 (Pa. Commw. Ct.1985). The Regulations of this Commission provide: 513.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. Hofrichter 98 -003 -R August 7, 1998 Page 3 (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa.Code, §§13.3(d); 21.29(b), (e). Upon review, neither of the two arguments raised in your reconsideration request meets the criteria for reconsideration. First, the fact that there has been another vote, which vote is argued to have rescinded the prior vote in which Hessler had participated, is not "new" information. In his commentary at the public meeting on May 1, 1998, Hessler previously so informed this Commission. Furthermore, nowhere in the Ethics Law is there any language that would suggest that subsequent "remedial measures" negate a violation. Based upon a straightforward application of the plain language of the statute and analogous case law, we conclude that if prior actions by Hessler would satisfy the statutory elements for a violation of the Ethics Law, and assuming that neither of the statutory exclusions would apply, a violation would exist, and subsequent "remedial measures" by the Board to rescind the vote would not operate to "undo" or negate such a violation. Compare, Com. v. Turrell, 526 Pa. 42, 584 A.2d 882 (Pa. 1990) (When the elements for "theft by failure to make required disposition of funds received" have been fulfilled, the crime is complete and cannot be "undone" by the return of the misappropriated funds). Certainly, remedial measures are to be encouraged. They may, under some circumstances, be considered by this Commission to be mitigating factors in determining whether to order restitution, treble penalty(ies), and/or referral(s) for criminal prosecution. However, they will not negate a violation. Compare Jfi. As for your second point, which proffers the possibility of a recurrence of a similar issue in the future, any possible future matters before the school board on a similar issue at this point are vague and speculative. Reconsideration is not the proper vehicle for deciding non - specific issues that might arise in the future. As for any future matters before the Board of Trinity School District, to the extent specific factual circumstances may arise in the future, further advice may be sought from this Commission. Having rejected the only two arguments which have been properly raised, we would parenthetically note in response to Hessler's "observation," that Hessler has been afforded due process. Our inability to consider the appeal of the Advice of Counsel is solely the result of his own choice to take action in the matter, which has rendered it "past conduct." Furthermore, given that the Advice was issued five days before the statutory deadline, Hessler's ongoing criticism of staff's attempts to get the Advice to him as soon as it was issued is unfounded. Returning to the three criteria for reconsideration, there has been no error of law. Furthermore, no new legal argument has even been proffered. The arguments now raised, ostensibly in support of "reconsideration," have been previously considered -- and rejected by this Commission -- in deciding the base Opinion. We will Hofrichter, 98 -003 -R August 7, 1998 Page 4 not, in the context of a request for reconsideration, revisit the same legal issues which were, in our view, correctly decided the first time. Although a material error of fact has been alleged, none has been shown as to Opinion 98 -003. Finally, no new facts or evidence have been submitted. Since there has been no material error of law or fact, and no new facts or evidence have been submitted, the criteria for reconsideration have not been met. See, Pennsylvania State Association of Township Supervisors v. State Ethics Commission, supra. Accordingly, we deny the request for reconsideration. IV. CONCLUSION: The request for reconsideration of Hofrichter, Opinion No. 98 -003 is denied. As for any future matters before the Board of Trinity School District, to the extent specific factual circumstances may arise in the future, further advice may be sought from this Commission. Pursuant to Section 7(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, 1 L1140 8 ate a_ J Daneen E. Reese Chair Commissioner Allan M. Kluger did not participate or vote in this matter.